STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
CLOYD TONEY (Facility 068502540); JAMES F. JENNINGS (Facility | ) ) | ||
128626716); JAMES SCELFO (Facility | ) | ||
018500049); DARREL HANEY (Facility | ) | ||
128503387); LEO COHEN and MARK | ) | ||
GROSBY (Facility 498627087); LEO | ) | ||
COHEN and JOHN H. ROTH (Facility | ) | ||
498627088); ROBERT C. ACKERT | ) Case | Nos. | 98-2021 |
(Facility 498627087); CLOYD TONEY | ) | 98-2030 | |
(Facility 538628774); LUELLA R. | ) | 98-4535 | |
CEASER (Facility 068501883); | ) | 98-4536 | |
JACK A. HARKNESS (Facility | ) | 98-4537 | |
158506545); and PETER D. KLEIST | ) | 98-4538 | |
(Facility 058500923), | ) | 98-4539 | |
) | 98-4540 | ||
Petitioners, | ) | 98-4541 | |
) | 98-4542 | ||
and | ) | 98-4543 | |
) | |||
ENVIRONMENTAL CORPORATION OF | ) | ||
AMERICA, INC., | ) | ||
) | |||
Intervenor, | ) | ||
) | |||
vs. | ) | ||
) | |||
DEPARTMENT OF ENVIRONMENTAL | ) | ||
PROTECTION, | ) | ||
) | |||
Respondent. | ) | ||
)
RECOMMENDED ORDER
On August 17-20, 1999, a formal administrative hearing was held in this case in Tampa, Florida, before J. Lawrence Johnston, Administrative Law Judge, Division of Administrative Hearings (DOAH).
APPEARANCES
For Petitioners: Bradford C. Vassey, Esquire
Environmental Corporation of America
205 South Hoover Street, Suite 101 Tampa, Florida 33609
For Intervenor: Carter B. McCain, Esquire
MacFarlane, Ferguson & McMullen
400 North Tampa Street, Suite 2300 Tampa, Florida 33601
For Respondent: J. A. Spejenkowski, Esquire
Department of Environmental Protection Douglas Building, Mail Station 35
3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000 STATEMENT OF THE ISSUE
The issue in this case is the amount of reimbursement to which Petitioners are entitled under the Petroleum Cleanup Reimbursement Program. Petitioners--supported by the Intervenor, Environmental Corporation of America (ECA)--seek reimbursement of contractor markups; Respondent, the Department of Environmental Protection (Respondent, DEP, or the Department), seeks to recover alleged overpayments related to interest payments.
PRELIMINARY STATEMENT
DEP denied the portions of numerous reimbursement applications filed by Petitioners that related to 15% markups paid to ECA (the "first-tier" markups). Petitioners requested formal administrative hearings, and the cases were referred to DOAH. Over DEP's objection, the above-captioned cases were consolidated and set for final hearing on March 9-12, 1999, in Tampa, Florida. Subsequently, Respondent's Motion for
Continuance of Final Hearing was granted, and final hearing was continued until May 25-28, 1999.
A dispute arose during discovery when DEP sought production of documents reflecting interest payments from subcontractors to ECA and from ECA to Petitioners. Petitioners took the position that only ECA's markups were relevant and opposed production.
DEP took the position that the interest payments were not reimbursable and that DEP could recover overpayments. DEP moved to compel, and Petitioners moved in limine to exclude evidence of interest payments at final hearing.
A telephone hearing was held on May 7, 1999, and an Order on Motion in Limine and Motion to Compel was entered on May 10, 1999. Ruling was reserved on Petitioners' Motion in Limine.
However, it was ruled that, if Petitioners' markups were computed in part on "interest" components for which reimbursement was not permissible under the pertinent statutes and rules, the claim for the markups may be denied as to the percentage markup on the nonreimbursable "interest." It was noted that Respondent had no pending claim in this proceeding for recovery of the reimbursement of the "interest" itself, and it was ruled that no such recovery order would be entered. During the hearing, Petitioners agreed to stipulate that the interest payments were made in accordance with the contractual agreements between subcontractors and ECA and between ECA and Petitioners, and Respondent accepted the stipulation in lieu of production of the payment checks themselves. As to other documents sought to be
produced, it was ruled that those documents were made and remained available for inspection by Respondent at the offices of counsel for Petitioners, and Petitioners were not be required to produce them elsewhere.
Another telephone hearing was held on May 12, 1999, on the parties' ore tenus requests for reconsideration of the Order on Motion in Limine and Motion to Compel entered on May 10, 1999. During the hearing, Respondent requested until May 17, 1999, to file a memorandum of law; Petitioners and Respondent each filed a memorandum of law.
While the requests for reconsideration were pending, Petitioners in Case Numbers 98-2030, 98-4536, 98-4539, and 98-4542 moved to withdraw their petitions for administrative
hearing. No action was taken on those motions because it was not known if reconsideration of the Order on Motion in Limine and Motion to Compel entered on May 10, 1999, would affect the parties' positions on the withdrawal motions. No action was taken on the withdrawal motions prior to final hearing.
On May 18, 1999, Petitioners' request for reconsideration was granted to the extent of clarifying that Petitioners were entitled to a "second-tier" percentage markup. As for Respondent's request for reconsideration, it was noted that Respondent filed a Notice of Change of Agency Position on May 11, 1999, contending that some of what it already had paid to Petitioners was: "interest" not reimbursable under the pertinent statutes and rules; ECA's "first-tier" markups on the non-
reimbursable "interest"; and Petitioners' "second-tier" markups on both the non-reimbursable "interest" and "first-tier" markups on the non-reimbursable "interest." Respondent contended that the alleged overpayments should be determined in these proceedings. On reconsideration, it was concluded that Respondent's claims for recovery of alleged overpayments were analogous to compulsory counterclaims that should be determined in these proceedings.
During the hearing on May 12, 1999, counsel for Petitioners clarified that not all "interest" payments were made in accordance with the contractual agreements between the subcontractors and ECA and between ECA and Petitioners but that Petitioners would stipulate to and document the amounts of "interest" actually paid under the contractual agreements.
Counsel for Petitioners was ordered to do so forthwith.
Meanwhile, consideration was given to bifurcating final hearing, using the time set aside for final hearing for the "ECA markup" issue and discovery on the "interest" issue, and continuing final hearing for the presentation of evidence on the "interest" issue. Instead, the parties agreed to continue final hearing until August 17-20, 1999, to give them an opportunity to reach a settlement, which they failed to do.
Respondent filed a Request for Official Recognition on May 18, 1999. Petitioners filed a Notice of Intent to Request Official Recognition of Certain Statutes, Rules and Official Documents on May 20, 1999. Although no objections to these
requests were filed, there was no ruling on them prior to final hearing.
On July 21, 1999, ECA filed a Motion to Intervene and to Amend Petitions to Add Environmental Corporation of America as a Party. DEP opposed the motion on several grounds, including lack of standing. It was ruled that ECA had standing under Section 120.52(12)(b), Florida Statutes (Supp. 1998), as a "person . . . whose substantial interests will be affected by proposed agency action, and who makes an appearance as a party." However, it was ruled that the petitions should not be amended and that ECA should not be added as a party petitioner in each of the pending petitions; rather, ECA was limited to intervenor status.
The parties were under a Prehearing Order to prepare and file a prehearing stipulation, but their efforts to do so were not successful.
On August 2, 1999, DEP filed a motion in limine to exclude evidence allegedly only relevant to DEP's motivation; Petitioners opposed the motion, contending that alleged improper motivation was relevant. No ruling was made prior to final hearing.
On August 10, 1999, Petitioners filed a so-called Amended Pre-Hearing Stipulation that contained additional requests for official recognition. On August 12, 1999, Petitioners filed yet another Request for Official Recognition, this time seeking official recognition of Chapter 99-379, Laws of Florida (1999) (enacting House Bill 107), as well as a Department of Banking and Finance, Division of Accounting and Auditing, Review of the
Cleanup Reimbursement Program, dated November 29, 1994. They also proposed a Second Amended Pre-Hearing Stipulation to clarify their reliance on Chapter 99-379.
At the outset of final hearing on August 17, 1999, the motions to withdraw the petitions in Case Nos. 98-2030, 98-4536, 98-4539, and 98-4542 were granted over objection.
Next, the parties' various requests for official recognition were addressed. It was ruled unnecessary to take official recognition of reported court (or administrative) decisions, codified Florida Statutes, the Laws of Florida, or the current Florida Administrative Code. The balance of the first three requests was granted without objection; further argument was entertained as to Petitioners' last Request for Official Recognition.
During argument on Petitioners' last Request for Official Recognition, Petitioners added requests to take official recognition of: a legislative staff analysis of House Bill 107; a document called "Capital Markets in the Petroleum Reimbursement Program"; and a Florida Administrative Weekly document that was marked as Petitioners' Exhibits 21 and 21a. DEP did not object to official recognition of Exhibits 21 and 21a, and they were given official recognition. Without objection, DEP's request to have its response included as part of the Department of Banking and Finance Review was granted; however, DEP never provided its response for inclusion.
Due to the lateness of the remainder of Petitioners' requests for official recognition, DEP was given ten days from the end of the hearing to object to them or file additional, related documentation for official recognition; Petitioners and Intervenor were given ten days to respond to any additional documents proposed for official recognition by DEP.
After the hearing, DEP filed a response that argued the significance of Chapter 99-379. DEP did not object to official recognition of Chapter 99-379 or any of Petitioners' other remaining official recognition requests; nor DEP add any requests for official recognition. All seven of those documents are officially recognized at this time.
Petitioners called eleven witnesses (including counsel for Intervenor) and had the following Petitioners' Exhibits admitted in evidence: 1-19; 21; 21a; 22-33; 35-38; 40-54; and 58. DEP
called six witnesses and had Respondent's Exhibits 1, 2, 4, 5, 9,
10, 11, 13, 14, 23 and 24 admitted in evidence. (Ruling had been reserved on objections to DEP Exhibit 13, but the objections are overruled.) Intervenor presented no additional evidence.
DEP ordered a transcript of the final hearing and asked for
21 days from the filing of the transcript to file proposed recommended orders. The request was not opposed and was granted.
The Transcript (four volumes) was filed on September 15, 1999, and Petitioners' Recommended Final Order [sic] was filed on September 27, 1999. Petitioners then opposed Respondent's Motion to Exceed Limitations of Rule 28-106.215, Florida Administrative
Code, and an Order Denying Enlargement of Proposed Recommended Order was denied on October 5, 1999. DEP already had filed a 32- page Proposed Recommended Final Order [sic] on October 4, 1999.
FINDINGS OF FACT
Petitioners funded efforts to rehabilitate (clean-up) petroleum and petroleum product contamination at the Joy Food Store (some, former Coastal Mart) facilities involved in these cases. As such, they were the persons responsible for conducting site rehabilitation (PRFCSR) at those sites.
Cloyd Toney, Case No. 98-2021, funded a contamination assessment report (CAR) at former Coastal Mart #688 in Fort Lauderdale, Florida. James Scelfo, Case No. 98-4535, funded a CAR at former Coastal Mart #430 in Gainesville, Florida. Leo Cohen and Mark Grosby, Case No. 98-4537, funded a remedial action report (RAP) at Joy Food Store #669 in Kissimmee, Florida. Leo Cohen and John H. Roth, Case No. 98-4538, funded a CAR at Joy Food Store #667 in Kissimmee, Florida; Cloyd Toney, Case No.
98-4540, funded a CAR at Joy Food Store #662 in Eaton Park, Florida. Luella R. Ceaser, Case No. 98-4541, funded a CAR at former Coastal Mart #684 in Pompano Beach, Florida. Peter D. Kleist, Case No. 98-4543, funded a RAP and Remediation Action (RA) at Joy Food Store #704 in Cocoa, Florida.
As PRFCSR's, Petitioners filed applications with the Department of Environmental Protection (DEP, Department, or Respondent) for reimbursement under an amnesty program created by Section 376.3071, Florida Statutes, for owners who notified the
Department that their property was contaminated by petroleum or petroleum products. Under the statutory reimbursement program someone (usually the site owner) typically would hire a contractor to rehabilitate petroleum-contaminated sites. All contractors performing site rehabilitation tasks would have to file a Comprehensive Quality Assurance Plan ("CompQAPP") with the Department. Field work not performed under and in accordance with the CompQAPP would not be accepted by the Department.
The contractor would then perform up to four rehabilitation program tasks, often through subcontractors and suppliers. The first potential program task would be an Initial Remedial Action (IRA). In an IRA, site-contaminated soil at the site would be identified by taking soil samples (soil borings), the contaminated soil would be removed, and the excavation would be backfilled with uncontaminated soil. The next step would be preparation of a Contamination Assessment Report (CAR). The purpose of the CAR would be to define the vertical and horizontal extent of groundwater contamination. Definition of groundwater contamination would require installation and sampling of groundwater wells. Additional soil samples sometimes would be necessary. The third step would be the Remedial Action Plan (RAP). In a RAP, a system to remediate the groundwater at a site is designed and approved. The final program task would be the Remedial Action (RA), which would implement the system designed in the RAP.
Upon completion of a program task, the site owner, operator, or his designee would submit a reimbursement application to the Department for payment for the costs of the rehabilitation activities.
Petitioners each claimed a 15% "second-tier" markup on the amount they funded (i.e., paid) the Intervenor, Environmental Corporation of America (ECA), a company owned and operated by Jack Ceccarelli. The amount each paid to ECA included ECA's 15% "first-tier" markup on amounts it said it paid subcontractors for site rehabilitation work.
Ceccarelli's Initial Involvement in Clean-up Projects
Ceccarelli worked for Joy Food Stores from December 1980 until August 1992. Joy, which sold gasoline at its stores, was owned and operated by Mike Hughey. Hughey hired Ceccarelli, who worked his way up from lower-echelon positions to eventually become responsible for overall operations of Joy Food Stores (Joy).
In 1986, Joy leased some of its retail facilities to a competitor doing business under the name Coastal Mart. After petroleum contamination was discovered at these and numerous other Joy locations, Coastal Mart sued Joy in early 1992. Meanwhile, Joy began to rehabilitate (assess and clean-up) its sites under the amnesty program created by Section 376.3071, Florida Statutes.
Joy initiated its clean-up projects under the so-called "state-lead" program. Under this program, the Department would
contract directly with a private contractor to perform the rehabilitation work at an eligible site and pay the contractor monthly for work performed. However, the Department only had ten approved contractors doing work under the "state-lead" program.
As a result, clean-up progressed slowly state-wide, and a large backlog of work developed. Clean-up of the Joy sites was at a standstill.
When Ceccarelli left Joy in August 1992, he formed a petroleum clean-up company called Environmental Directions Incorporated ("EDI"). Subsequently, he approached Hughey with a proposal to clean-up the Joy and Coastal sites, using the reimbursement program, third-party financing, and multiple subcontractors. Hughey agreed with Ceccarelli that Ceccarelli's proposal could be a way to settle the Coastal Mart lawsuit.
In February 1993, Ceccarelli secured a financing agreement from Clean America Corporation (CAMCOR) and environmental consulting services from Environmental Solutions and Services, Inc. (ESSI) based in Longwood, Florida. Under the arrangements made by EDI, ESSI contracted directly with Joy and agreed to compensate EDI as "Project Coordinator." EDI was to be compensated at an hourly rate of $100 for project coordination (described as "client/funder coordination), with a minimum of 50 hours per week for the Coastal/Hughey (i.e., Joy) sites; EDI also was to receive 2% of ESSI's 15% contractor markup. Joy settled the Coastal Mart lawsuit in February or March 1993 by taking back
the Coastal Mart locations. These sites were included in the seven applications at issue in these cases.
Clean-up work proceeded on the basis of those contractual agreements, with some amendments, but CAMCOR never provided funding, and ESSI reluctantly made only a partial payment to EDI in August 1993. In October 1993, ESSI was bought by Omega Environmental Services (Omega). Omega confirmed the prior contractual arrangements and continued with the clean-up work begun by ESSI. But since CAMCOR never funded the enterprise, Omega was not paid for its work and did not pay EDI under the prior contractual provisions.
In October 1994, Omega bought Gurr and Associates (Gurr), another environmental consulting firm. Initially, Omega operated Gurr as a subsidiary but later dissolved Gurr and operated it as a division of Omega. Gurr/Omega initially continued under Omega's prior contractual arrangements, but Gurr/Omega still was not being paid by CAMCOR, and Gurr/Omega still was not paying EDI.
When lack of financing began to threaten the continued viability of the clean-up projects, Ceccarelli sought alternative funding through another company he incorporated under the name Environmental Corporation of America (ECA).
An immediate problem confronted by ECA in getting financing was that a prospective funder's anticipated profit was at risk of erosion by passage of time between funding and reimbursement from the Department, which was taking anywhere from
eight months to two, even three years. From August 1993 through August 1994, the law allowed the Department to pay interest to claimants pending processing of reimbursement applications.
These interest payments compensated funders for the time value of money and protected their anticipated profit from being eroded by passage of time during which reimbursement applications remained pending. After August 1994, interest payments from the Department ceased. See Conclusion 70, infra. The practical effect was to put the funders' rate of profit at risk. As a result, to help entice funders, other contractual means were devised to replace the interest previously paid by the Department.
Eventually, ECA entered into contracts with funders to provide funding for the Joy and Coastal Mart sites. Each Agreement to Fund between ECA and the funders of these sites provided:
INTEREST "Contractor" agrees to pay "Funder" a rate of interest equal to the published prime interest rate (Nations Bank) fixed at time of funding on such funds advanced by "Funder". Interest shall be payable twelve (12) months in advance. An additional five percent (5%) will be deposited in a reserve account to be paid to the Funder as follows: two and one-half percent (2 1/2%) at the end of month fifteen and two and one-half percent (2 1/2%) at the end of month eighteen. Reimbursement by the State in less than eighteen months may result in an interest adjustment due "Contractor" from "Funder" or reserve account. Any interest paid by the State of Florida under Section 62-773.650 will accrue to "Contractor" on the same basis as it was paid "Contractor" to "Funder" and shall be paid by "Funder" to "Contractor" within five(5) days
of funders [sic] receipt of disbursement from the State of Florida to "Funder".
Reimbursement by the State which takes more than eighteen (18) months will result in an interest adjustment due "Funder" from "Contractor" at the rate of prime fixed at the time of funding plus three percent (3%) for months 19 and beyond, paid quarterly in advance to the escrow account and paid to the Funder quarterly in arrears.
ECA also entered into a series of agreements with Gurr/Omega, each called a Participation Agreement for Rehabilitation of Petroleum Contamination Site. Under these agreements, ECA was said to be acting for "its investors." Gurr/Omega was identified as having "heretofore entered into contracts with reimbursement eligible site owners or operators to fund, manage and rehabilitate specific sites." Gurr/Omega was required to "provide all labor, equipment and materials and [was to have] performed all work needed to complete certain specified sites selected and approved by ECA." Gurr/Omega was to "complete such performance in strict compliance with all applicable statutes rules and regulations and to the satisfaction of FDEP." Gurr-Omega would submit its invoices for remediation work to ECA, which would pay Gurr/Omega with money obtained from third-party investors. ECA would receive an assignment of Gurr/Omega's right to reimbursement from the State of Florida. In effect, Gurr/Omega gave up its contractor markup on invoices submitted by its subcontractors and suppliers; instead, ECA charged a contractor markup on Gurr/Omega's invoices. ECA would then be responsible for preparing reimbursement packages for submission to the Department.
Each Participation Agreement for Rehabilitation of Petroleum Contamination Site also contained a provision requiring Gurr/Omega to pay ECA a share of what ECA was required to pay the funders under the corresponding Agreement to Fund.
ECA hired Restoration Assistance, Inc., to prepare reimbursement applications for all of the Joy and Coastal sites, including the sites funded by Petitioners in these cases. (In addition to preparing reimbursement applications, Restoration Assistance had a subcontract with Halliburton NUS, which had a contract with the Department to review reimbursement applications filed by others for completeness and entitlement to reimbursement.)
ECA would send Restoration Assistance a package of invoices and technical documentation for each application. Restoration Assistance would compare the invoices with the technical documentation to determine whether costs in the invoices were allowable and to categorize the costs and enter the costs and other required information in the appropriate places on the reimbursement applications. In some cases, Restoration Assistance noted costs not believed to be allowable and recommended their deletion. In some cases, ECA required invoices to be adjusted so that they only included allowable costs. In other cases, ECA required Gurr/Omega to pay portions of payments it received from ECA into a retention account for "anticipated denials."
The packages sent to Restoration Assistance included invoices from Gurr/Omega and from ECA. ECA's invoices included a 15% contractor markup on Gurr/Omega's invoices. In some cases, Gurr/Omega also marked-up subcontractor and subcontractor invoices it paid for rehabilitation work. Sometimes, after review by Restoration Assistance, the funders paid the invoices, and the application packages were returned to Restoration Assistance with certifications from the funders and an attestation from a certified public accountant (CPA) that the costs reflected in the invoices had been "incurred," i.e., in fact paid. Restoration Assistance would then file the completed application with the Department.
After application packages were completed, ECA's "investors" would "fund" (pay) all invoices and markups. At approximately the same time, ECA would pay Gurr/Omega's invoices, and ECA and Gurr/Omega would make the initial interest payments required under the applicable Agreement to Fund and Participation Agreement for Rehabilitation of Petroleum Contamination Site. However, the reimbursement packages did not include any evidence of the interest payments by Gurr/Omega and ECA or their agreements to make interest payments, respectively, to ECA and Petitioners. Nor were the interest payments or agreements to pay interest made a part of the CPA's attestation that all costs were "incurred."
ECA began filing reimbursement applications for "its investors" in November 1994. The Scelfo application was filed in
February 1995; the Ceaser application was filed in March 1995; the Toney and Grosby applications were filed in March 1996; and the Roth and Kleist applications were filed in May 1996 (among 30 applications filed that month, which were the last filings by ECA, except for a handful filed in September 1996.)
At about the time ECA began filing applications for "its investors," the Department was trying to decide how to deal with serious problems that had arisen in the reimbursement program. It had come to the Department's attention that entities known as Environmental Trust, Inc. (ET) and Sarasota Environmental Investors, Inc. (SEI), together with other entities related through interlocking ownership and directorship arrangements, were filing reimbursement applications claiming "first-tier" markups for a so-called contractor called Gator Environmental, Inc. (Gator), who was not involved until after rehabilitation work already had been completed by Tower Environmental, Inc. (Tower). It seemed Gator's primary function actually was to perform a "due diligence" site inspection for the funders. In addition, participants at various levels of the rehabilitation efforts in these applications, including the ultimate funders, ET and SEI, were claiming reimbursement for the full amount of invoices when they only paid a discounted portion of the invoices, which were being factored by a related financing company called American Factors Group (AFG). The Department began to devise a means of addressing problems like these in the context of the applicable statutes and rules.
In September 1994, the Department began to require reimbursement applicants to provide documentation showing that entities claiming contractor markups "added value" to the rehabilitation effort. Specifically with respect to Gator, the Department wanted to know the date and duration of its involvement; if Gator came on the scene after the CAR submittal for which reimbursement was being claimed, no markup would be allowed for Gator.
In October and November 1994, the Department held meetings to discuss the ET case in general and the "factoring" (discounting) of invoices in particular. It was decided at these meetings that Gator's charge for a CPA's due diligence was not "integral" to site rehabilitation since it was related to financing, not rehabilitation. It also was decided that the Department would not reimburse the difference between invoices and the factored (discounted) amount paid since the difference between the two represented carrying charges (i.e., interest) not reimbursable under applicable rules. In time, the Department denied these portions of approximately 46 reimbursement applications filed by ET and a related entity, Sarasota Environmental Investors, Inc. (SEI).
At about the time these decisions were being made on the ET and SEI applications, the Department informed its contract application reviewers (such as Restoration Assistance), orally and later in writing, that additional documentation would be required to support claims for contractor markups to determine
whether the contractor's activities were "integral to site rehabilitation associated with active management and oversight of subcontractors and vendors." Reviewers were informed that, in asking for additional information, they should inform applicants:
Costs integral to site rehabilitation associated with active management and oversight of subcontractors and vendors may include: negotiation of contracts with subcontractors and vendors; development of specifications and solicitation of quotes for equipment and supplies; scheduling and coordination of subcontractor activities; and on-site supervision of activities performed by subcontractors.
The following are examples of activities that are not considered integral to site rehabilitation:
. . . activities performed as due diligence on behalf of the funding entities.
Reviewers also were advised that they could deny contractor markups for the following reasons:
Although the activities performed appear to include some amount of active management and oversight of subcontractors and vendors, they can not be differentiated from non- reimbursable activities and/or activities that appear not to be integral to site rehabilitation. Therefore, these activities do not constitute sufficient responsibility and participation to warrant the 15% markup claimed
. . . .
The documentation provided does not demonstrate a sufficient level of effort integral to site rehabilitation . . . in actively
managing and overseeing subcontractors and vendors to warrant the 15% markup.
The activities documented do not show any active management and oversight of subcontractors and vendors and do not constitute sufficient responsibility and participation integral to site rehabilitation to warrant the 15% markup claimed . . . .
In December 1994, John M. Ruddell, Director of Waste Management for the Department, submitted a draft revision of Florida Administrative Code Rules Chapter 62-773 (the rules for the reimbursement program), which included elimination of markups entirely. However, the draft revision never went to rulemaking.
In January 1995, the Department instructed Restoration Assistance, acting in the role of the Department's contract reviewer, to act in accordance with the decisions made at the Department's staff meetings in September, October, and November 1994. Specifically, Restoration Assistance was instructed not to allow a markup for Gator, not to allow the cost of the CPA's due diligence for funding purposes, and not to pay the difference between invoices and the factored (discounted) amounts actually paid.
As reflected in an April 1995 intra-office memorandum, the Department continued to take the positions that factored (discounted) general contractor invoices could not be paid in full and that:
II. The next tier entity (e.g., management company) may be allowed claims for actual project
management work and value-added services; services provided by the general contractor and duplicated by the management company should not be claimed by the management company.
Management company claims (e.g., markups) would be denied if the general contractor's claims simply passed through (e.g., one month time period) the management company to the responsible party without any services provided.
However, if the management company only provided cash flow services for a majority of the program task period and no other service was provided, then a markup on the general contractor's claims would be allowable.
In August 1995, the Department instructed its reviewers as to an application involving Gator. The reviewers were told not to allow Gator a markup if it did not become involved until after the work was completed. They were told that if Gator was involved in rehabilitation work, not to pay for management costs duplicative of "services provided by the subs or the resp[onsible] party." They also were instructed that Gator's non-duplicative management, if any, "counts towards the total project management percentage of personnel time."
ET and SEI filed approximately 46 petitions for formal administrative proceedings on their application denials between September 1995 and February 1996. These cases were referred to DOAH.
In October 1995, Charles Williams, the Administrator of the Department's Petroleum Clean-Up Section, e-mailed a
memorandum to its contract reviewers reiterating instructions regarding contractor markups. The memorandum also noted a claim for reimbursement of a 15% contractor markup where the work of the so-called general contractor "was limited to a 1 hour meeting with the sub."
In January 1996, the Department referred another 37 related cases to DOAH, each having two counts--one challenging reimbursement application denials, and another challenging the Department's alleged use of unadopted rules (the Department's various memoranda regarding factoring and markups) in denying the applications. These and other related cases were consolidated for final hearing in April 1996.
In internal correspondence of contract reviewer Halliburton NUS, sent through the Department's contract manager, Grace Rivera, in May 1996, Halliburton's reviewers were instructed to apply an "8-hour" benchmark for gauging contractor participation. Part of the internal correspondence stated:
Middle Man Markup: A funders [sic] service is funding, so pay the 15% markup. Also allow a 15% markup to a "middleman" who has done work for the site for at least 8 hours during the time that the work was going on. Do not allow the 15% if the middleman did not do any value added services while the site work was going on, or if their [sic] was no funding. Before you deny a markup because there was no work done by the middleman while site work was going on, call the PR [person responsible] and ask if "any information was not included in the application" to see if they
had hours they did earlier but did not claim.
In October 1996, a Recommended Order was entered in the ET and SEI cases upholding the application denials. The Department entered a Final Order adopting the ALJ's Recommended Order, and ET and SEI appealed to the District Court of Appeal, First District.
In October 1996, Charles Williams sent Sewell, Todd, and Broxton, Inc. (STB), which reviewed reimbursement applications filed by Restoration Assistance, a letter providing "Written Confirmation of Verbal Guidance for Review of Reimbursement Claims with General Contractor Markups." The letter referred to a meeting of September 18, 1996, and Williams' October 1995 e-mail. It also referred to the Department's January 1996 decision to have reviewers request "additional documentation of general contractor activities that may have been performed beyond those billed in the claim prior to denying their markup." It stated: "This was done because several firms had indicated that they did not bill all of their activities due to the management time limitations in the rule." It referred to the Department's guidance in February 1996 as to the wording of such requests for additional documentation. Finally, it noted that the contractor markup issue was discussed at a public workshop in July 1996 on proposed clarifications to Florida Administrative Code Rules Chapter 62-773.
Prior to October 1996, the Department only entered a few orders of determination (OOD's) on the reimbursement
applications submitted by ECA for "its investors." Out of 29 OOD's, contractor markups were paid on 12 applications and denied on 17. Meanwhile, as to the other applications, the Department requested more documentation and information as to ECA's involvement in these and other projects. ECA responded to this request and provided the Department with a variety of documents, but the Department delayed its determination.
After the Recommended Order in the ET and SEI cases in October 1996, the Department entered 41 more OOD's; 45 more OOD's were entered in November 1996. All denied ECA's markups. Subsequently, another 117 OOD's were entered on the applications filed by ECA for "its investors." Of these, ECA's markups were paid on 32 applications; the rest were denied.
Petitioners' applications were denied in October 1996 or later. With respect to the Petitioners in these cases, the Department disallowed the following amounts of ECA markup: Toney (Case No. 98-2021), $8,120.80; Scelfo (Case No. 98-4535),
$6,495.29; Cohen and Grosby (Case No. 98-4537), $5,302.33; Cohen and Roth (Case No. 98-4538), $10,303.12; Toney (Case No. 98- 4540), $9,293.40; Ceaser (Case No. 98-4541), $4,231.91; and
Kleist (Case No. 98-4543), $13,446.66. These amounts included ECA's 15% markups, plus Petitioners' 15% markups on ECA's markups.
The Department did not reduce any ECA claims by the interest payments required under the applicable Agreement to Fund and Participation Agreement for Rehabilitation of Petroleum
Contamination Site. By the time of the presentation of evidence during the hearing in the ET and SEI cases in April 1996, the Department had information that many rehabilitation efforts were arranging to replace the post-application interest the Department no longer was paying. See Conclusion 75, infra, Findings of Fact 120-121. Certainly, by the summer of 1996, the Department was aware of these kinds of arrangements. But the Department was not looking beyond the contents of the application packages to ascertain whether such arrangements were involved, and the ECA application packages contained no evidence of the interest payments being made in accordance with the applicable Agreement to Fund and Participation Agreement for Rehabilitation of Petroleum Contamination Site.
During discovery in these cases, the Department obtained evidence that interest payments were made in accordance with the applicable Agreement to Fund and Participation Agreement for Rehabilitation of Petroleum Contamination Site. At that point, the Department sought to recover those interest payments, together with any markups on them. Subsequently, Petitioners stipulated to receipt of the following interest payments from ECA
under the Agreement Petitioner | to Fund: DOAH Case | Interest Amount |
Cloyd Toney | 98-2021 | $6,282.52 |
James Scelfo | 98-4534 | $6,670.50 |
Cohen/Grosby | 98-4537 | $4,030.68 |
Cohen/Roth | 98-4538 | $7,783.00 |
Cloyd Toney | 98-4540 | $7,160.79 |
Luella Ceasar | 98-4541 | $4,135.42 |
Peter Kliest | 98-4543 | $8,469.25 |
There also was evidence that Gurr/Omega paid ECA : $3,688.56 of interest under the Participation Agreement for Rehabilitation of Petroleum Contamination Site for Cohen and Grosby, Case No. 98- 4537, Joy Food Store #669; and $2,789.72 of interest under the Participation Agreement for Rehabilitation of Petroleum Contamination Site for Luella Ceaser, Case No. 98-4541, Coast Mart #684. (There was no evidence of other interest payments from Gurr/Omega to ECA with respect to these cases.) However, under the Participation Agreement for Rehabilitation of Petroleum Contamination Site, those payments constitute part of the interest payments from ECA to Petitioners.
The documentation and evidence establish that, in all the Joy/Coastal clean-up projects, including the seven funded by Petitioners in these cases, ESSI-Omega-Gurr/Omega was a full service contractor employing all the licensed geologists and engineers, draftsman, project coordinators, field technicians, and support staff necessary to rehabilitate theses sites. ESSI- Omega-Gurr/Omega personnel planned, performed, supervised, and supported all field activities performed at these sites--e.g., preparation of field work plan, including locating, scheduling, drilling, installing and sampling of soil borings and monitoring wells; designing monitoring well and remedial action system specifications, disposal of contaminated soil; measuring monitoring well water levels and conductivity. (All field work was performed under the ESSI-Omega-Gurr/Omega CompQAPP.)
ESSI-Omega-Gurr/Omega personnel contracted and interacted with laboratories obtaining all soil and water sampling test kits and sampling results. ESSI-Omega-Gurr/Omega personnel analyzed all soil and water sampling test results and re-directed the scope of the rehabilitation of these sites accordingly.
ESSI-Omega-Gurr/Omega personnel obtained permission and access from neighboring property owners to install monitoring wells on their property. ESSI-Omega-Gurr/Omega personnel interacted with local state and county officials securing permits, responding to their inquiries, and requesting permission to conduct additional remediation activities.
ESSI-Omega-Gurr/Omega owned, rented, or bought all equipment, vehicles, instruments, tools, and materials used to remediate these sites.
ESSI-Omega-Gurr/Omega office personnel performed, supervised, reviewed, and supported all activities necessary to produce the CAR's and RAP's for these sites. They wrote, reviewed, edited, and typed the reports; they drafted all figures, maps, tables, and indexes.
ESSI-Omega-Gurr/Omega office personnel recorded, tracked, and invoiced all their work, the work of all their subcontractor activities, and their costs.
At the outset of rehabilitation work on the Joy/Coastal site, Ceccarelli and Hughey discussed the overall rehabilitation effort on the sites. Hughey wanted the clean-up to proceed as
quickly as reasonably possible. He also wanted work at the various sites to be timed and performed so as to disrupt retail operations as little as possible. Hughey expected EDI to communicate his concerns and desires with ESSI and make sure that ESSI's performance of the Joy-ESSI contract would conform with those concerns and desires. At the outset, Ceccarelli met with ESSI's executives in Orlando, Florida, to carry out Hughey's desires. EDI also assembled helpful historical information on the sites, including information Joy developed in connection with the Coastal Mart lawsuit.
As ESSI became Omega, and Omega became Gurr/Omega, and EDI became ECA, Ceccarelli continued in his role as liaison between ESSI-Omega-Gurr/Omega and Joy and general overseer of the projects. In addition to meeting with ESSI-Omega-Gurr/Omega's executives, Ceccarelli discussed various aspects of the projects with ESSI-Omega-Gurr/Omega personnel, especially those housed in their Tampa office, which was in the same building as EDI/ECA; Ceccarelli, in turn, discussed these things with Hughey on a regular basis. Ceccarelli also had ESSI-Omega-Gurr/Omega prepare monthly summary progress reports, which Ceccarelli reviewed and went over with Hughey. Ceccarelli also usually visited the sites, including at least six of the seven sites at issue in these cases. (The invoice for Joy Food Store #669 in Kissimmee was missing from Petitioners' Exhibit 4, and no other documentation evidenced a site visit.) Sometimes, Hughey accompanied Ceccarelli on a site visit.
ECA's invoice for Joy Food Store #688 in Ft. Lauderdale (Case No. 98-2021) billed for eight hours for travel and a site visit, plus another 6.75 hours of general contractor management and administration time for such things as: review of well installations; review of the scope of work for the CAR with Omega; review with the Broward Natural Resources Department; estimate of the cost to complete and scheduling work; and review the CAR after preparation by ESSI-Omega-Gurr/Omega. Of this time, only 8.75 hours was claimed as management time on the reimbursement application forms prepared by Restoration Assistance.
ECA's invoice for Coastal Mart Store #430 in Gainesville (Case No. 98-4535) billed for four hours for travel and a site visit, plus another 7.5 hours of general contractor management and administration time for such things as: reviewing the file for a work plan; reviewing monitor well installations; reviewing a drilling well report (or soil borings); reviewing the CAR after preparation by ESSI-Omega-Gurr/Omega; and reviewing of invoices/billings. Of this time, only 11.5 hours were claimed as management time on the reimbursement application forms prepared by Restoration Assistance.
As mentioned in Finding 50, supra, ECA's invoice for Joy Food Store #669 in Kissimmee (Case No. 98-4537) was missing from Petitioners' Exhibit 4. But Restoration Assistance's Personnel Supplementary Form for Management/Project Management time shows 12 hours of general contractor management time.
ECA's invoices for Joy Food Store #667 in Kissimmee (Case No. 98-4538) billed for four hours for travel and a site visit, plus another 26.25 hours of general contractor management and administration time for such things as client consultation (probably with Hughey); sorting site data and review of site file; review of wells with client (possibly due to problems with well installation); review with senior project manager; review of well installation; and review of CAR and CAR addendum after preparation by ESSI-Omega-Gurr/Omega. Of this time, 26.25 hours were claimed as management time on the reimbursement application forms prepared by Restoration Assistance.
ECA's invoice for Joy Food Store #662 in Eaton Park (Case No. 98-4540) billed for three hours for travel and a site visit, plus another 17.25 hours of general contractor management and administration time for such things as reviewing scope of work and budget; copying and data and setting up files; reviewing hand auger data; coordinating well installation; reviewing additional wells; reviewing groundwater results; reviewing site access requests and data; reviewing the CAR and CAR addendum after preparation by ESSI-Omega-Gurr/Omega. Of this time, only three hours were claimed as management time on the reimbursement application forms prepared by Restoration Assistance.
ECA's invoice for Coastal Mart Store #684 in Pompano Beach (Case No. 98-4541) billed for 2.5 hours for pro rata share of travel and a site visit, plus another 11.25 hours general contractor management and administration time for such things as
data reviewing and compiling information for CAR; reviewing the CAR; project coordination in Broward County; reviewing billings; and reviewing general project coordination. All of this time was claimed as management time on the reimbursement application forms prepared by Restoration Assistance.
ECA's invoice for Joy Food Store #704 in Cocoa (Case No. 98-4543) billed for 6.5 hours for travel and a site visit, plus another 24.5 hours of general contractor management and administration time for such things as client consultations; the sorting and review of file data; review with senior project manager; financial review and tracking; review of RAP with client and sub; review of file and prepare invoice; and review of and response to Brevard County RAP questions with sub. Of this time, only 13.5 hours were claimed as management time on the reimbursement application forms prepared by Restoration Assistance.
The Department contends that part of ECA's invoice for Joy Food Store #662 is not legitimate because it records Ceccarelli's review of the CAR addendum on February 10, 1995, the same day the CAR addendum was signed and sealed by the project geologist in Orlando.
The Department also contends that another part of ECA's invoice for Joy Food Store #662 is not legitimate because it records the review of a well drilling report on March 7, 1994, the same day the wells were installed. The installation of these wells took eleven hours, and the Department contends that the
chances of generating a well-drilling report that day under these circumstances are minimal.
The explanation for these discrepancies probably lies in the way in which Ceccarelli prepared his invoices. Ceccarelli admittedly was far from meticulous in keeping track of the time he spent on these projects, in part because of his personal disinclination and in part because of ECA's understanding that meticulous time-keeping was not critical for reimbursement of a markup. To the contrary, it was ECA's understanding that the Department would not reimburse for excessive management time for ECA when ECA was being compensated in the form of the 15% markup on ESSI-Omega-Gurr/Omega's invoices. Indeed, Restoration Assistance reduced ECA's management time in at least five of the seven claims for reimbursement at issue in these cases. (This could not be ascertained for Joy Food Store #669 without the invoice for that store.) For the most part, the activities listed in ECA's invoices were not recorded contemporaneously with the performance of the listed activity. Rather, the invoices were created based on Ceccarelli's review of his personal calendar, telephone bills, and reports generated by ESSI-Omega- Gurr/Omega.
The Department contends also that part of ECA's invoice for Joy Food Store #684 is not legitimate because it indicates a total of 4.25 hours for project coordination activities on July 1, 1994, November 14, 1994, and January 31, 1995, while the CAR for this facility was finalized on April 15,
1994. This length of time appears to be erroneous; it probably represents time spent on the RAP phase of rehabilitation at that site, not the CAR phase. The CAR reimbursement claim should be reduced by $488.25 for ECA's time, and by $73.24 for Ceaser's 15% markup.
The evidence on Joy Food Store #684 also was that Gurr/Omega paid ECA $649.00 for anticipated denials. These moneys were deposited in an escrow account, and the record is void as to whether these costs were denied by the Department or whether ECA ever returned these moneys to Gurr/Omega. But the disposition of the escrow fund would be a matter for ECA and Gurr/Omega to resolve; it would not affect Ceaser's reimbursement application.
The Department criticizes the lack of documentation evidencing what Ceccarelli claims he did on these projects; the lack of such documentation contributed to the Department's doubts as to the veracity of the invoices. But in the numerous cases of Ceccarelli's review of work by ESSI-Omega-Gurr/Omega recorded in the invoices, no EDI/ECA work product was generated, so none could be produced. Documentation supplied to the Department supported ECA's claims that ESSI-Omega-Gurr/Omega sent EDI/ECA reports to review and supported some other claims of time spent on the projects, as well as ECA's claim that a considerable amount of time spent on these projects was not recorded in ECA's invoices.
There also came a point in time when ECA stopped responding to Department requests for additional information because ECA came to believe that the Department intended to deny ECA's markups regardless what documentation was produced. ECA came to this belief based in part on learning during a meeting with Department staff that Charles Williams had issued notices of intent to deny ECA's markups in some cases without even looking at documentation produced by ECA. When the parties began to litigate, documents were produced only in response to discovery requests. Ceccarelli testified that his telephone records were not produced because the Department did not ask for them.
The Department also criticized Ceccarelli's inability to recall in detail from memory what he did during the time recorded in the invoices for these projects. But, under the circumstances, it was understandable for him not to have such a clear, detailed recollection. It was not proof of dishonesty.
CONCLUSIONS OF LAW
At the time the site rehabilitation work at issue in these cases was undertaken (beginning in 1993), Section 376.3071, Florida Statutes, provided in pertinent part:
(4) Uses.-- Whenever, in its determination, incidents of inland contamination related to the storage of petroleum or petroleum products may pose a threat to the environment or the public health, safety, or welfare, the department shall obligate moneys available in the fund to provide for:
* * *
Rehabilitation of contamination sites, which shall
consist of cleanup of affected soil, groundwater, and inland surface waters, . . . except that nothing herein shall be construed to authorize the department to obligate funds for payment of costs which may be associated with, but are not integral to, site rehabilitation, such as the cost for retrofitting or replacing petroleum storage systems.
* * *
(12) Reimbursement for cleanup expenses.--
. . .
* * *
Amount of reimbursement.-- The department shall reimburse actual and reasonable costs for site rehabilitation. The department shall not reimburse interest on the amount of reimbursable costs for any reimbursement application. However, nothing herein shall affect the department's authority to pay interest authorized under prior law.
Rules Before Environmental Trust Administrative Decisions (All Rules refer to Florida Administrative Code Rules.)
In 1993, Rule 17-773.100, Introduction and Scope, provided in pertinent part:
(1) Sections 376.3071(9) and (12), F.S.,
provide that, in order to encourage voluntary and expeditious rehabilitation of contamination sites related to the storage of petroleum or petroleum products, any person responsible for conducting site rehabilitation at sites with discharges eligible for the programs described in Section (2)(a) is [entitled] to reimbursement from the Inland Protection Trust Fund at reasonable rates for allowable costs incurred after January 1, 1985 in connection with site rehabilitation.
(2) This chapter shall apply to requests for reimbursement of costs integral to rehabilitation of [eligible sites].
* * *
This chapter establishes procedures and documentation required to receive reimbursement.
Review and approval of reimbursement applications shall be based upon the statutes, rules, and written guidelines governing petroleum contamination site cleanup and reimbursement which were in effect at the time the work was performed or the records of activities and expenses were generated, as applicable. Records relating to site rehabilitation which were generated prior to the effective date of specific requirements in a statute, rule or written guideline shall, to the greatest extent possible, be organized in accordance with this rule and shall comply with the requirements of Section 376.3071(12), F.S. Requirements of this rule shall not be retroactively applied to activities performed or records generated prior to the effective date of this rule unless dates of applicability are specified by rule or statute. However, due to the statutory requirements of allowability and reasonableness on the use of the Inland Protection Trust Fund pursuant to Section 376.3071, F.S., records of all activities and expenses, regardless of date, must be of sufficient detail to demonstrate the program task or authorized activities to which they pertain and provide a breakdown of expenses or comparable documentation so that the Department can assess the task or activity on a units and rates basis in order to evaluate the reasonableness of costs.
In 1993, Rule 17-773.200, Definitions, provided in pertinent part:
All words and phrases defined in Section 376.301, F.S., shall have the same meaning when used in this chapter unless otherwise set forth in this section or unless the context clearly indicates otherwise. The following words and phrases, when used in this chapter, shall, unless the context clearly indicates otherwise, have the following meanings:
* * *
(9) "Incurred costs" means allowable costs that have been paid. However, for the purpose of reimbursement, where the person or organization listed as the person responsible for conducting site rehabilitation on the Certification Affidavit, Form 17-773.900(3), F.A.C., does not have a financial interest in the site, the following costs shall be considered incurred upon completion of the program task(s) in accordance with Rule 17- 773.500, F.A.C.:
Reasonable rates, including profits associated with the work performed, claimed for the use of their own personnel or equipment with documentation pursuant to Rule 17-773.700(7), F.A.C.; and
Allowable markups or handling fees applied to their paid contractor, subcontractor or vendor invoices pursuant to Rule 17-773.350(9), (10), and (11), F.A.C.
* * *
"Integral" means costs essential to completion of site rehabilitation.
"Interest costs incurred" means an interest credit calculated in accordance with Rule 17-773.650(1), F.A.C., to be paid to the person or organization listed as the person responsible for conducting site rehabilitation on the Certification Affidavit, Form 17-773.900(3), F.A.C., as an incentive to participate in the Petroleum Cleanup Reimbursement Program.
In 1993, Rule 17-773.350, Limitations, provided in pertinent part:
Nothing in this chapter shall be construed to authorize reimbursement for costs associated with the following:
Achieving compliance with the provisions of Chapters 17-61, 17-761, and 17- 762, F.A.C., with the exception of costs associated with contamination cleanup provisions or tank removal and replacement pursuant to Rule 17-773.650(2), F.A.C. Costs associated with such compliance that shall not be authorized for reimbursement include:
Costs for the installation, maintenance, and monitoring of leak detection and leak prevention
systems such as compliance monitoring wells, automatic leak detectors, overfill protection devices, cathodic protection systems, and secondary containment;
Costs for investigation of petroleum storage system integrity such as tank and line tightness testing with the exception of those outlined in Rule 17-773.650(6), F.A.C.; and
Costs associated with closure assessments, unless contamination was present and the closure assessment is used in the completion of program tasks pursuant to Chapter 17-770, F.A.C.
* * *
(e) Interest or carrying charges of any kind with the exception of those outlined in Rule 17-773.650(1), F.A.C.;
* * *
Nothing in this chapter shall be construed to authorize reimbursement of more than two levels of contractor markups or handling fees applied to contractor, subcontractor or vendor invoices.
Nothing in this chapter shall be construed to authorize reimbursement of contractor markups or handling fees in excess of 15 percent for each level of allowable markup applied to contractor, subcontractor or vendor invoices.
Nothing in this chapter shall be construed to authorize reimbursement of contractor markups or handling fees applied to invoices between any two entities which have a financial, familial, or beneficial relationship with each other.
Rule 17-773.650, Reimbursement Incentives, provided in pertinent part:
It is the intent of the Florida Legislature and the Department that as many sites as possible be cleaned up by responsible parties through the Petroleum Cleanup Reimbursement Program. To that end, the following incentives have been authorized to encourage participation in the Petroleum Cleanup Reimbursement Program.
(1) Reimbursement of interest costs in the form of an interest credit added to the allowable amount of select reimbursement applications is authorized by Section 376.3071(12), F.S. There are three distinct groups of applications which may be eligible to receive an interest credit and two methods of calculating interest.
* * *
The third group includes applications received after August 14, 1992. This interest credit shall be calculated automatically by the Department. A request by the reimbursement applicant shall not be required. Payment of interest on the allowable amount of reimbursement applications in this group shall be calculated at a rate of one percent per month or the prime rate on the submittal date, whichever is less, from the 61st day following receipt until the application is paid provided:
The Department determines the
application to be sufficient. If an application, as originally submitted, is determined to be insufficient, interest shall be paid commencing on the date application is made sufficient until the application is paid; and
The amount of unencumbered funds in the Inland Protection Trust Fund is at or about $10 million. Interest will not be paid if the tax for inland protection is at its highest level and the unencumbered balance of the Inland Protection Trust Fund is below $10 million for two consecutive months. If payment of interest is suspended on new applications due to insufficient funds, it shall resume for newly submitted applications when the amount of unencumbered funds exceeds $10 million for two consecutive months. The Department shall publish notice of change in the status of the interest eligibility for applications in this group in the Florida Administrative Weekly. Interest shall not be paid on new
applications received more than 30 days after the date of publication of notice that interest is unavailable. Interest payments shall resume for new applications received after the date of publication of notice that interest is again available. Interest eligibility for this group is based on the noticed status of the Inland Protection Trust Fund at the time of reimbursement application submittal and shall not be affected by subsequent changes in the status of the Inland Protection Trust Fund.
In 1993, Rule 17-773.700, Application for Reimbursement, provided in pertinent part:
Upon completion of one or more program tasks at sites with an eligible discharge, the person responsible for conducting site rehabilitation may apply for reimbursement of allowable costs actually incurred in conducting site rehabilitation. Pursuant to Section 376.3071(12), F.S., payment shall be made in the order in which the Department receives completed applications provided sufficient information has been provided to determine the allowability and reasonableness of all costs claimed.
* * *
(5) Costs claimed in a reimbursement application for the employees, equipment or materials of the site owner, site operator or any entity which has a financial interest in the site or a familial or other beneficial relationship with the site owner or operator shall be considered to be in-house, and reimbursement shall be limited to actual costs only. No fee, markup, commission, percentage or other consideration shall be allowed.
* * *
Pursuant to Rule 62-773.200(9), F.A.C., reasonable rates, including profits,
may be claimed for the personnel and equipment or other allowable expenses of the person responsible for conducting site rehabilitation as well as allowable markups on paid contractor, subcontractor, and vendor invoices and shall be considered incurred for the purpose of reimbursement provided:
The person responsible for conducting site rehabilitation does not have a financial interest in the site pursuant to Rule 17- 773.200(7), F.A.C., or a familial or other beneficial relationship with the site owner or operator;
The activities performed were integral to the program task claimed pursuant to Rule 17-773.500, F.A.C.; and
Detailed invoices are provided by the person responsible for conducting site rehabilitation that include all subcontractor and vendor invoices and that meet the requirements for site identification, activity descriptions and unit rate breakdown provided in Rule 17-773.700(2), F.A.C. These invoices must identify the person responsible for conducting site rehabilitation and clearly distinguish their costs from those for paid subcontractors or vendors.
* * *
Wherever a financial, familial or other beneficial relationship exists among the site owner or operator, the person responsible for conducting site rehabilitation, and any of the vendors or contractors hired to conduct site rehabilitation, full and fair disclosure shall be made to the Department by indication in the designated section of the Program Task and Site Identification Form, 17-773.900(2), F.A.C., and appended explanation. When either of the above parties is a corporation, partnership or other type of business organization, such disclosure requirement shall include officers, directors, partners and trustees of such business entity.
All applications must be examined by
an independent Certified Public Accountant (CPA) holding an active Florida license in accordance with Sections 473.308 and 473.314, F.S., and such examinations made in accordance with the Attestation Standards established by the American Institute of Certified Public Accountants. A copy of the
CPA's report must be appended to the reimbursement application. In this report, the CPA shall include:
* * *
An opinion verifying that:
Adequate supporting documentation is included in the reimbursement application package;
Costs are accurately itemized in the reimbursement application package; and
All costs claimed in the reimbursement application have actually been incurred, as required by Rules 17-773.200(9) and 17- 773.700(7), F.A.C.
All second tier invoices in excess of $1,000 from subcontractors and vendors have been paid.
* * *
(12) Review and approval of reimbursement applications shall be based upon the statutes, rules and written guidelines governing petroleum contamination site cleanup and reimbursement which were in effect at the time the work was performed or the records of activities and expenses were generated, as applicable. Records relating to site rehabilitation which were generated prior to the effective date of specific requirements in a statute, rule or written guidelines shall, to the greatest extent possible, be organized in accordance with this rule and shall comply with the requirements of Section 376.3071(12), F.S. Requirements of this rule shall not be retroactively applied to activities performed or records generated prior to the effective date of this rule unless dates of applicability are specified by rule or statute. However, due to the statutory limitations of allowability and reasonableness on the use of the Inland Protection Trust Fund pursuant to Section 376.3071, F.S., records of all activities and expenses, regardless of date, must be of sufficient detail to demonstrate the program task or authorized activity to which they pertain and provide a breakdown of expenses or comparable documentation so that the Department can assess the task or activity on
a units and rates basis in order to evaluate the reasonableness of costs.
Subsequently, the Florida Administrative Code Rules Chapter 17 was renumbered Chapter 62 with no other changes. Citations to these rules infra will be to the Chapter 62 numbers.
Environmental Trust Administrative Decisions
In Environmental Trust, et al. v. Dept. of Environmental Protection, 19 F.A.L.R. 2933 (DEP 1997), reports the Final Order and Recommended Order entered in the administrative proceedings on the Department's denial of portions of reimbursement applications filed by ET and SEI. Cf. Findings 31-32, supra.
With regard to the factoring of invoices submitted with those applications, the Department adopted the ALJ's finding that "the difference between the costs actually 'incurred' and the amounts 'paid' was interest." 19 F.A.L.R. at 2937. The Department held that those amounts were not reimbursable under Section 376.3071(12)(b), Florida Statutes, and Rule 17- 773.350(4)(e) [later renumbered 62-773.350(4)(e)]("interest or carrying charges of any kind" are not reimbursable).
Significant to the ALJ and the Department in denying full reimbursement for factored invoices were the following findings and conclusions:
FINDINGS OF FACT
* * *
16. An interest rate charge on short-term borrowed capital from an unrelated third-party source is a "cost of doing business." DEP's predominate rates are fully loaded.
They include a variable for all direct and indirect business overhead costs such as rent, utilities and personnel costs. DEP includes the cost of short-term borrowed capital in the direct and indirect overhead components of the full-loaded personnel rates. Rule 17-773.700(5)(a), Florida
Administrative Code.
* * *
. . . However, DEP never intended the predominate rate schedule to entitle an applicant to reimbursement for costs that it did not actually incur.
In the instant cases, funds that passed down through the chain from ET or SEI to Gator or from Gator to Tower flowed directly and immediately back to AEE [the factoring entity] and its investors.
* * *
Inconsistent Application of Statutes, Rules and Written Guidelines
* * *
DEP has authorized financial transactions by which other applicants, after incurring (paying) all costs and filing their applications, sold or pledged their right to future payment to an entity outside the usual reimbursement chain. In those cases, DEP did not deduct interest associated with such transactions. DEP's approval of such transactions came before Petitioners filed their applications in this matter.
There is no evidence that those transactions involved the factoring of invoices and an agreement to repay interest before the PRFCSR submitted the applications. Likewise, there is no evidence of an affiliation and less than arms-length negotiation between the funder and the financing company in those cases. The record contains no evidence of an inconsistent application of DEP's statutes, rules or written policies before or after Petitioners filed the instant applications.
* * *
CONCLUSIONS OF LAW
* * *
The factoring company's officers and directors created ET and SEI for the benefit
of the factoring company as a conduit for the factoring company to invest funds in the petroleum contamination cleanup program.
They have other investment vehicles which they use for the same purpose waiting until the last moment to decide which funder they will use to issue a funder's authorization to the general contractor. The only documented evidence of an agreement between the factoring company and Petitioners is a bill of sale issued with each transaction.
The agreements between Petitioners and the factoring company were not negotiated at arms-length. For all practicable purposes, Petitioners and the factoring company are one and the same. Therefore, the factoring company's agreements with Gator and Tower result in a back flow of funds to an entity affiliated with the funders.
Gator and Tower agreed to sell their right to receive reimbursement payments at a discount to the factoring company before Petitioners filed the subject application. They also agreed to immediately reimburse the factoring company upon receipt of those payments in the face amount of their respective invoices. Therefore, the difference between the face amount of an invoice and the discount amount of that invoice represents interest on borrowed capital.
With regard to denial of Gator's markups, the following findings and conclusions were significant to the ALJ and the Department:
FINDINGS OF FACT
* * *
DEP policy in effect at the time Petitioners submitted the instant applications for reimbursement was to allow markups of paid invoices at two levels. However, prior to the submission of the instant applications, DEP was not aware of a case where a general contractor claimed a markup for work that was complete before the general contractor became involved in the project.
With regard to all of the pending reimbursement applications, Gator applied a
15 percent markup to all of Tower's invoices including the invoices of Tower's subcontractors.
With regard to a minimum of 30 of the
45 sites, Gator clearly did not supervise, manage or direct site remediation activities performed by Tower or its subcontractors. In fact, Gator did not become involved until after Tower completed these tasks.
In at least 30 of the instant cases, Tower was acting as the general contractor when all of the on-site remediation took place. However, Tower could not apply a 15 percent markup to the invoices for its own services. Gator made it possible for Petitioners to claim the markup on Tower's invoices.
As to the 15 sites at which Gator allegedly had some type of involvement with on-site remediation activities, there is no persuasive evidence regarding the specific activities or the level of Gator's involvement on any particular project.
* * *
262. DEP properly deducted Gator's markup because its services were not integral to site remediation. Gator did not actually perform any services which justified a markup. The preparation of an unnecessary deficiency letter and the simple payment of Tower's invoices did not create an actual and reasonable cost of site remediation.
In March 1997, the ALJ entered a Final Order on the petitions filed by ET and SEI challenging the Department's memoranda on factoring and markups as unadopted rules. The ALJ held that the memoranda "had the effect of unadopted rules" but dismissed the petitions "based on the finding that the Department had initiated rulemaking to adopt the policies as rules as soon as it was practical or feasible." Environmental Trust v. Dept. of Environmental Protection, 714 So. 2d 493, 496 (Fla. 1st DCA 1998).
ET and SEI appealed the Department's final order denying portions of their reimbursement applications, as well as the final order dismissing their challenges to the Department's memoranda as being unadopted rules.
Rules Proposed After Environmental Trust Administrative Decisions
The first notice of proposed rulemaking was published on March 22, 1996; final notice of the proposed rulemaking on factoring and markups was published on September 27, 1996. Id.
Rule 62-773.200(9)-(10) was proposed to be amended (by the addition of the underlined language and deletion of the strikethrough) to read:
"Incurred costs" means allowable costs that have been paid in full and documented in accordance with Rule 62-773.700, F.A.C., minus any amount prepaid or repaid including rebates, discounts, reservation or commitment fees, commissions, credits, or interest. However, for the purpose of reimbursement, where the person or organization listed as the person responsible for conducting site rehabilitation on the Certification Affidavit, Form 62-773.900(3), F.A.C., does not have a financial interest in the site, the following costs shall be considered incurred upon completion of the program task(s) in accordance with Rule 62-773.500, F.A.C.:
Reasonable rates, including profits
associated with the work performed, claimed for the use of their own personnel or equipment with documentation pursuant to Rule 17-773.700(7), F.A.C.; and
Allowable markups or handling fees applied to their paid contractor, subcontractor or vendor invoices pursuant to Rule 17-773.350(9), (10), and (11), F.A.C.
Rule 62-773.350(9) was proposed to be amended to read:
The following limitations shall apply to reimbursement of markups:
No more than two levels of markup shall be applied to any invoice and not more than one level of markup shall be applied to any invoice by the same entity;
No markup applied to any invoice shall exceed 15% at any single level;
No markup shall be applied to invoices between any two entities that have a financial, familial or beneficial relationship with each other;
No markup shall be applied to any invoice by the owner or operator of the legible petroleum contamination site, any entity that has financial interest in the site, any entity that has a financial, familial or beneficial relationship with the site owner or operator, or any entity that is otherwise responsible for the discharge of petroleum or petroleum products at the site;
No markup shall be applied by any entity, other than an unrelated third party designated as the person responsible for conducting site rehabilitation, that did not provide a necessary and documented service that is integral to site rehabilitation by actively managing and overseeing the activities of the subcontractors and vendors while the site rehabilitation work was being performed. Necessary services integral to site rehabilitation include: negotiation of contracts with subcontractors and vendors; development of specifications and solicitation of quotes for equipment and supplies; scheduling and coordination of subcontractor activities; and on-site supervision of activities performed by subcontractors; and
No markup shall be applied to any
invoice by any entity that did not actually incur all of the costs to which a markup is being applied.
Nothing in this Chapter shall be construed to authorize reimbursement for any cost that was not incurred by the person responsible for conducting site rehabilitation designated on the certification affidavit form in the
reimbursement application with the following exception: Invoices for allowable site rehabilitation activities and expenses that were paid in full by current or former owners or operators of the eligible site may be claimed on their behalf by the person responsible for conducting site rehabilitation. No markups can be applied by the person responsible for conducting site rehabilitation to these invoices and only one reimbursement check can be paid to the person responsible for conducting site rehabilitation for the entire application. The Department is not responsible for the distribution of reimbursement funds by the person responsible for conducting site rehabilitation to the owners or operators whose invoices were included in the claim.
Section (11) of the former version of the rule was proposed to be deleted, and Sections (12) through (16) were proposed to be renumbered (11) through (15).
Rule 62-773.700(12) was proposed to be deleted, and Sections (13) through (14) were proposed to be renumbered (12) through (13).
Administrative Decision on Proposed Rules
ET and others challenged the proposed rules. On February 12, 1997, the ALJ:
entered a final order declaring the proposed rule invalid. The judge held that the rule could not be applied retroactively because the statute creates a vested right to reimbursement. Additionally, the judge determined that the rule could not be applied prospectively because the Legislature had since eliminated the reimbursement program of the Inland Petroleum Trust Fund.
Environmental Trust, supra at 497.
The Department appealed the ALJ's Final Order invalidating the proposed rules.
Environmental Trust Judicial Decision
All the appeals in the ET cases were consolidated. In Environmental Trust, supra, the District Court of Appeal, First District, ruled in favor of the Department. Because several aspects of the decision are pertinent to the Petitioners' cases, excerpts are quoted here:
PADOVANO, Judge.
* * * Environmental Trust and Sarasota
Investors filed forty-five reimbursement applications for rehabilitation work completed on various dates from July 1994 through February 1995. The cost of the work was financed in each case by a factoring arrangement. Generally, factoring is the process of purchasing accounts receivable at a discount. In these cases, the factoring company advanced capital at a discounted rate to the subcontractor, the contractor, and an investment company like Environmental Trust or Sarasota Investors, and then applied for reimbursement from the state based on the face amount of the invoices submitted at each level of the process. As a result, the cost of the discount for providing investment capital to the contractor, subcontractor, and investment company, was passed along to the state as a part of the cost of the rehabilitation.
In at least thirty of the projects, the
site rehabilitation work was completed by a subcontractor, Tower Environmental Services Inc., under an agreement with the general contractor, Gator Environmental Services, Inc. Gator had no substantial involvement with these projects until the work was completed. At that point, Gator performed a site inspection for which it claimed a fifteen percent markup over the amount of the invoice submitted by Tower in its
reimbursement application. Environmental Trust and Sarasota Investors were the investment companies, and they served primarily as a conduit for the capital provided by factoring companies such as American Factors Group Inc. and American Environmental Enterprises, Inc.
The Department had a rule in place concerning the necessary qualification for reimbursement but the rule did not expressly address the factoring scheme in the present case. Consequently, the Department began to gather more information from Environmental Trust and Sarasota Investors over a period of months to determine the proper approach to the review of the applications. Then, in a memorandum dated April 21, 1995, the Department stated its position on factoring discounts. In this memorandum, the Environmental Manager explained that the amount represented by a factoring discount is not reimbursable because it amounts to interest on the face amount of the invoice.
By internal electronic mail dated October 20,
1995, the Department also took the position that it would allow a markup for the general contractor only if the general contractor performed an integral management function in the rehabilitation of a site. Accordingly, the Department deducted the discounts and the contractor's fifteen percent markup in all of the pending applications.
* * *
We find no error in the Department's final order in the proceeding under section 120.57(1), Florida Statutes (1995), denying in part the applications for reimbursement. This order must be affirmed because it is based on competent substantial evidence.
Additionally, we agree with the result of the order by Administrative Law Judge Suzanne Hood in the proceeding under section 120.535, Florida Statutes (1995). However, we reject the main conclusion of law in this order and affirm it on other grounds. In our view, it was not necessary to excuse the Department's action on the ground that it was "incipient policy" soon to ripen into a new rule, because the Department's action was justified on the basis of the statute and the existing rule.
A party who asserts a disputed claim before an administrative agency generally has the burden of going forward with the evidence as well as the ultimate burden of establishing the basis for the claim. Young v. Department of Community Affairs, 625 So.2d 831 (Fla.1993); Balino v. Department of Health and Rehabilitative Services, 348 So.2d
349 (Fla. 1st DCA 1977). Environmental Trust and Sarasota Investors failed to satisfy this burden by showing that there was a legal basis for their claim to reimbursement for the cost of the discounts or the markups. Nothing in section 376.3071, Florida Statutes (1995), creates an entitlement to recover these expenses. By the plain language of the statute, reimbursement is limited to the "actual and reasonable costs for site rehabilitation." Section 376.3071(12)(d), Florida Statutes (1995).
The cost represented by the series of discounts for providing capital is not an actual cost of the site rehabilitation work. Likewise, a markup for a contractor who adds no value to the work cannot be regarded as an actual cost. Environmental Trust and Sarasota Investors could not prevail on this point even if we were to conclude that the phrase "actual and reasonable costs" is ambiguous. Statutes establishing economic grants or entitlements are strictly construed in favor of the government and against the grantee. See Norman J. Singer, 3 Sutherland Stat. Const. Section 63.02 (5th Ed.1992).
Therefore, any doubt whether a particular
claim for reimbursement is part of the actual cost of the rehabilitation would be resolved against the claimant.
The Department's action in deducting the cost of the discounts is supported not only by the statute but also by the rules in existence at the time the work was done.
Subject to exceptions not applicable here, rule 62- 773.650(1) prohibits reimbursement for "[i]nterest or carrying charges of any kind." In the present case, the Department concluded that the cost of the discounts amounted to interest on the face amount of the invoices. Interest is not transformed into a reimbursable item merely because the claimant elects to characterize it as a discount. Moreover, the rule also prohibits
recovery for "carrying charges of any kind," which means that financial returns to an investment company are not reimbursable, regardless of their characterization. If the Department improperly denies a claim for reimbursement of discounts earned by a factoring agent, that action can be challenged in a section 120.57(1) proceeding. However, the denial of such a claim does not suggest the need for yet another rule to explain all of the possible situations in which a financing cost might constitute interest.
Likewise, the Department's action in
denying the markup for Gator Environmental was supported by rules then in existence. Rule 62-773.100(2) provides that requests for reimbursement must apply to costs that are integral to site rehabilitation. The term "integral" is defined in rule 62- 773.200(2)(11) as "those costs which are essential to completion of site rehabilitation." Here, the Department determined that it would not pay the markup to a contractor if the site rehabilitation work was completed entirely by the subcontractor. Again, this action is merely an application of the existing rule. The Department is not required to adopt another rule explaining how it will apply the term "integral" in a particular circumstance.
Environmental Trust and Sarasota Investors
rely on the fact that the existing rules do not specifically address the discount and markup issues. However, the problem with this approach is that it effectively reverses the burden of establishing entitlement to reimbursement. Proof of entitlement to government benefits cannot rest on a claim that the benefits are not specifically prohibited by law. Rather, the burden is on the claimant to show that a particular benefit is allowed by the law. Otherwise, there would be no end to the bills that might be presented to the state for expenses not specifically prohibited by law.
An agency statement that is the
equivalent of a rule must be adopted in the rulemaking process. See, e.g., Christo v. State Department of Banking and Fin., 649 So.2d 318 (Fla. 1st DCA 1995); Florida League of Cities v. Administration Comm'n,
586 So.2d 397 (Fla. 1st DCA 1991). This requirement, carried forward in section 120.54(1), Florida Statutes (Supp. 1996), prevents an administrative agency from relying on general policies that are not tested in the rulemaking process, but it does not apply to every kind of statement an agency may make. Rulemaking is required only for an agency statement that is the equivalent of a rule, which is defined in section 120.52(15), Florida Statutes (1996), as a statement of "general applicability."
An agency statement explaining how an existing rule of general applicability will be applied in a particular set of facts is not itself a rule. If that were true, the agency would be forced to adopt a rule for every possible variation on a theme, and private entities could continuously attack the government for its failure to have a rule that precisely addresses the facts at issue. Instead, these matters are left for the adjudication process under Section 120.57, Florida Statutes.
It is true the Department made several statements regarding the factoring discounts and the markups, but the statements did not have the effect of rules. The first of these was a statement concerning factoring discounts in an April 21, 1995, memorandum from Bruce French, the Department's Environmental Manager, to Charles Williams, the Department's Environmental Administrator. In the memorandum, Mr. French explained:
Regarding reimbursement applications where the program task organization structure of the applicant may involve any combination of a general contractor, management company, funder and responsible party and any other parties with claims in the application for these entities, only incurred costs of the general contractor and subcontractors including allowable markups are to be considered for reimbursement.
Specifically, invoices from
subcontractors, vendors, suppliers and/or the general contractor which were paid a factored (e.g. discounted) amount by a third party
capital participant (e.g., funder) represents the actual amount incurred by the entity and subsequently by the general contractor.
This statement appears to be nothing more than an analysis of how the existing prohibition against interest and carrying charges would be applied to a factoring scheme. Mr. French closed the memorandum with a warning that "[m]any versions on this theme of factoring and discounting (e.g. reservation fees) may be encountered when reviewing applications" and directed administrators to refer the "[m]ore creative approaches to capital participation" to the office of the general counsel.
The second agency statement alleged to be a rule is contained in electronic mail by Administrator Williams, apparently to his staff. In this communication dated
October 20, 1995, Mr. Williams gave the following directive to reviewers:
if the 'GC' [general contractor] was involved with the management of the project during the course of the actual work by subcontractors, [DEP] rules do not preclude them from applying a markup. However, if the 'GC' came along after the work was completed by other contractors and their involvement was more of a due diligence exercise to facilitate a funding arrangement by a third party, then the 'GC' markup would not be justified, though a markup by the actual funder listed as the PRFCSR could be allowed.
Again, this statement appears to be nothing
more than an analysis of the existing rule as it applies to the circumstance in which a general contractor is employed for the apparent purpose of increasing the amount of the bill. In this communication, Mr.
Williams is plainly referring to the existing rule.
* * *
In the rule challenge proceeding, the administrative law judge entered a final order invalidating the Department's revised rule 62-773 on markups and factoring
discounts. The judge reasoned that the rule could not be applied prospectively because the legislature had abolished the entire reimbursement program, and that it could not be applied retroactively, because the underlying statute creates a vested right to reimbursement. We conclude that the rule is valid and that it applies retroactively to pending applications.
Rule 62-773 cannot be applied to applications for future site rehabilitation work, because reimbursement is no longer available, but that does not render the rule "invalid" as that term is used in section 120.56, Florida Statutes (Supp.1996). The policy of this statute is to make administrative agencies accountable for their own rules. An attempt to promulgate an invalid rule may now result in an award of attorneys' fees against the agency and in favor of the party challenging the rule. See section 120.595(2), Florida Statutes (Supp.
1996). This result would be unfair, however,
if the rule was valid at the time it was proposed and if the agency has followed the proper rulemaking procedures.
The more difficult aspect of the final order is the holding that rule 62-773 cannot be applied retroactively. In Florida, an administrative rule generally has only prospective application. See Gulfstream Park v. Division of Pari-Mutuel Wagering, Dept. of Business Regulation, 407 So.2d 263 (Fla. 3d DCA 1981). The federal courts also apply this principle. See Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 109 S.Ct. 468, 102
L.Ed.2d 493 (1988)(a federal rule or regulation is retroactive only if the enabling legislation contains a valid grant of authority specifically allowing the agency to apply the rule retroactively).
An exception may apply, however, if the rule merely clarifies another existing rule and does not establish new requirements.
This exception is best illustrated by the decision of the United States Supreme Court in Smiley v. Citibank of South Dakota, 517 U.S. 735, 116 S.Ct. 1730, 135 L.Ed.2d 25
(1996). There, the plaintiff filed suit in California against a bank chartered in South Dakota, alleging that the bank had violated California law by charging excessive late
fees on a credit card. The bank argued that federal banking laws allow a national bank to charge interest at the rate allowed in the state of incorporation, and that the late fees were proper because they were a form of interest. After the suit was filed, the Comptroller of the Currency adopted a new rule specifically including late fees in the definition of interest. The Court held that this rule could be applied retroactively to the plaintiff's case, because the rule did not alter the Comptroller's previous interpretation of the term "interest."
As the Smiley decision reveals, the
prohibition against retroactive application of administrative rules does not apply to all kinds of rule amendments. On the contrary, retroactive application of a rule may be proper if the rule merely clarifies or explains a previous rule. See, e.g., Appalachian States Low-Level Radioactive Waste Comm'n v. O'Leary, 93 F.3d 103 (3d Cir.1996); Homemakers N. Shore, Inc. v.
Bowen, 832 F.2d 408 (7th Cir. 1987); Nussbaum v. Mortgage Serv. Am. Co., 913 F.Supp. 1548 (S.D.Fla.1995). See also Kenneth Culp Davis & Richard J. Pierce, Jr., Administrative Law Treatise Section 6.6 (Supp. 1997). In Pope v. Shalala, 998 F.2d 473 (7th Cir. 1993), the court explained that a rule clarifying an unsettled or confusing area of the law can be applied retroactively because it merely "restates what the law according to the agency is and has always been." The court quoted from the analysis by the United States Supreme Court in Manhattan General Equipment Co. v. Commissioner of Internal Revenue Service, 297 U.S. 129, 135, 56 S.Ct. 397,
400, 80 L.Ed. 528 (1936). There, the Court
reasoned that a rule merely clarifying existing policy is "no more retroactive in its operation than is a judicial determination construing and applying a statute to a case in hand." We think the revised rule in the present case falls within this exception.
The existing rule provides that a request for reimbursement must apply to "integral" costs, which are defined as "those costs which are essential to the completion of site rehabilitation." As previously explained, the Department used these
provisions to deny unwarranted contractor markups. The challenged rule addressed the subject in the following terms:
Reimbursement shall be limited to actual "incurred costs" as defined in rule 62-773.200(9) and all costs must be incurred by the person responsible for conducting site rehabilitation except as provided in Rule 62- 773.350(10); and
Reimbursement of markups shall be allowed only when necessary and documented service has been provided that is integral to site rehabilitation, subject to the limitations provided in rule 62-773.350(9).
This new language merely restates a self- evident proposition existing in the prior rule; a contractor must perform some site rehabilitation work or supervision to qualify for reimbursement.
Likewise, the new language relating to factoring discounts merely restates existing limitations on the right to reimbursement.
As stated in the revised rule: "Incurred costs" means allowable
costs that have been paid in full and documented in accordance with Rule 62-773.700 F.A.C. minus any amount prepaid or repaid including rebates, discounts, reservation or commitment fees, commissions, credits or interest.
This language does not add new limitations on the right to reimbursement. According to section 376.3071, Florida Statutes, reimbursement is limited to the "actual costs" of rehabilitation. The existing provisions of rule 62-773 prohibit reimbursement for "interest or carrying charges of any kind."
Reviewing courts must give great weight to the intent expressed by the agency in determining whether a revised rule imposes new requirements or merely clarifies existing requirements. See Pope v. Shalala. Here, the Department did not intend to establish any new requirements. On the contrary, the rule was adopted to clarify the provisions of the existing rule on which the Department had
been relying to support its position on markups and factoring discounts. The Department had taken a consistent position on these issues in forty-five applications even before the revised rule was formally proposed.
The case for retroactive application is further supported by the fact that the revisions to the rule were proposed at a time when the Department was facing a challenge to the alleged use of non-rule policy. The Department had consistently maintained that a new rule was not necessary, but Judge Hood rejected that argument in favor of a finding that the Department had been applying an incipient non-rule policy. If an administrative agency can apply incipient policy to a pending case (because it is about to adopt a rule), then surely it can apply the rule eventually adopted to codify that policy. Because the proposed rule in this case makes no change in the Department's policy under the existing rule, it can be applied retroactively to pending applications.
* * *
ERVIN, Judge, concurs.
* * *
BENTON, Judge, concurring in part and dissenting in part:
* * *
On the merits of the appeal in No. 97- 770, I respectfully dissent from reversal outright. I would affirm in part and reverse in part with directions. In the proceeding which gave rise to the appeal, the administrative law judge invalidated the entirety of the proposed rule amendment, although he did so "by halves."
The administrative law judge invalidated the amendment insofar as it proposed to operate retroactively on grounds no statute authorized a rule that would apply retroactively. I would affirm invalidation of the amendment insofar as it proposed to operate retroactively. Retroactive application of the proposed rule amendment is incompatible with the procedural requirements of section 120.57(1)(e), Florida Statutes (Supp.1996), which contemplate "de novo review by an administrative law judge" rather than the deference to which duly promulgated
rules are entitled in substantial interest hearings.
House Bill 107/Chapter 99-379
In direct response to the retroactive application analysis in Environmental Trust, supra, the Florida Legislature enacted Section 4 of House Bill 107, effective June 18, 1999. Section 4, Chapter 99-379, Laws of Florida (1999). That legislation amended Section 120.54(1)(f), Florida Statutes (Supp. 1998), by the addition of the underlined language and deletion of the strikethrough, to read:
(1) General provisions applicable to all rules other than emergency rules.--
* * *
(f) An agency may adopt rules authorized by law and necessary to the proper implementation of a statute prior to the enforced effective date of the statute, but the rules may not be effective until the statute upon which they are based is effective. An agency may not adopt retroactive rules, including retroactive rules intended to clarify existing law, unless that power is expressly authorized by statute.
The Department first suggests that Section 4 of Chapter 99-379 should not be given effect because Petitioners have not challenged the validity of the 1998 rules, and there is no jurisdiction to invalidate them in these cases. But the question raised in these cases is whether the rules should be given retroactive or prospective effect, not whether they are invalid, which was the question in the proposed rule challenges appealed in Environmental Trust, supra.
Contrary to the Department's second argument, Section
of Chapter 99-379 does not express an intention for the amendment contained in Section 4 not "to reverse the result of any specific judicial decision." Section 1 of the legislation, including the quoted language, expressly applies only to Sections
and 3 of the legislation, dealing with the "class of powers and duties analysis," which was used in another judicial decision but not in Environmental Trust, supra. There is no express legislative intention not to apply Section 4 so as to reverse the result in Environmental Trust, supra.
Without explicit expression of legislative intent, the essential inquiry in determining whether a statute should be given retroactive or prospective effect is whether the effect of the statute is truly retroactive. See Levine v. Federal Deposit Ins. Corp., 651 So. 2d 134 (Fla. 4th DCA 1995), rev. denied, 660 So. 2d 713 (Fla. 1995)(analyzing the application of an act of Congress). In deciding this question, it must be kept in mind that the purpose of Section 4 of Chapter 99-379 is to prevent agencies from giving retroactive effect to rules. As acknowledged in Environmental Trust, supra at 499-500, administrative rules usually are given only prospective effect. See also Jordan v. Dept. of Prof. Reg., 522 So. 2d 450, 453 (Fla. 1st DCA 1988), stating:
An administrative rule is operative from its effective date, Hulmes v. Div. of Retirement, Dept. of Admin., 418 So.2d 269 (Fla. 1st DCA 1982); Canal Ins. Co. v. Continental Cas.
Co., 489 So.2d 136 (Fla. 2d DCA 1986), and,
like a statute, Black v. Nesmith, 475 So.2d
963 (Fla. 1st DCA 1985), is presumed to operate prospectively in the absence of express language to the contrary, for when an agency adopts rules and regulations, it functions as a quasi-legislative body, Agrico Chemical Co. v. State Dept. of Environmental Regulation, 365 So.2d 759, 12 ERC 1503 (Fla.
1st DCA 1978), cert. den. 376 So.2d 74 (Fla.1979).
Under these circumstances, Section 4 of Chapter 99-379 is not considered to have truly retroactive effect and may be applied retroactively to control these cases.
Applying Section 4 of Chapter 99-379, the 1998 rules cannot be given retroactive effect. Without the 1998 rules, these cases must be decided under the rules previously in effect. These were the same rules that controlled and underlay the ET and SEI administrative decisions, which were upheld on appeal. In those cases, the ALJ held the unadopted memoranda to be "incipient policy" having the effect of rules required to be adopted. The judicial decision in Environmental Trust, supra, held the unadopted memoranda not to be rules at all, but rather to be expressions of the Department's application of the existing statutes and rules to the facts of those cases, in particular with respect to factored invoices and Gator's markups. Section 4 of Chapter 99-379 has no effect of that holding of the Environmental Trust decision. As such, those memoranda do not control the outcome of these cases. These cases must be decided on application of the statutes and rules previously in effect to the facts of these cases, which are not the same as those in the ET and SEI cases.
In accordance with one of the holdings in Environmental Trust, supra at 497, Petitioners have the burden of establishing the legal basis for their claims. To do this, they must prove that the costs represented by ECA's markups and the interest payments are an "actual cost of the site rehabilitation work" under the applicable statutes and rules.
The facts of these cases are that, unlike Gator, ECA had substantial involvement with these projects before the work was completed. In the context of numerous sites being rehabilitated for a single owner, ECA's involvement as essentially project coordinator was akin to the involvement of a general contractor who subcontracts work to subcontractors. Under Rule 62-773.100(2), ECA's contributions were "integral to site rehabilitation." Under Rule 62-773.200(2) and (11), they
were "essential to completion of site rehabilitation." They also are not limited by Rule 62-773.350(9)-(11). It is concluded that they were enough to justify ECA's markups under these rules and under Section 376.3071(4)(c), Florida Statutes.
It also is concluded that ECA's documentation was "of sufficient detail to demonstrate the program task or authorized activities to which they pertain and provide a breakdown of expenses or comparable documentation so that the Department can assess the task or activity on a units and rates basis in order to evaluate the reasonableness of costs." Florida Administrative Code Rules 62-773.100(5) and 62-773.700(12). More stringent record-keeping requirements were introduced first in the form of
unadopted rules and later adopted rules. But these new requirements came into being after the work in these cases was performed and after expense records were generated; Petitioners and ECA are not required to conform to these new requirements. Id. Petitioners' documentation met the requirements of Section 376.3071(12), Florida Statutes.
Petitioners seek to distinguish the interest payments from ECA to Petitioners, and from Gurr/Omega to ECA, from the factored invoices in Environmental Trust, supra, first by Petitioners' payment of the entire ECA invoice, not just a factored (discounted) portion. But to distinguish interest payments made nearly simultaneously with receipt of invoice payments from discounts is to elevate form over substance. The two are equivalent.
Petitioners also seek to distinguish the two interest scenarios based on their characterization of the interest payments in these cases as being "post-funding" interest payments that were "like a bank loan." Petitioners contend that such interest payments in their cases were explicitly recognized and approved in the ET and SEI cases. But actually the ALJ in those cases found that the Department had approved post-funding discount of rights to reimbursement "to an entity outside the usual reimbursement chain." (Emphasis added.) See Conclusion 75, supra, Findings of Fact 120-121. Payment of interest to entities part of the reimbursement chain is not the equivalent of payments on a bank loan.
The rules in place at the time of these reimbursement claims was clear. "Interest or carrying charges of any kind" were not reimbursable, "with the exception of those outlined in Rule [62]-773.650(1), F.A.C." Rule 62-773.350(4)(e). The interest payments under the Agreement to Fund and Participation Agreement for Rehabilitation of Petroleum Contamination Site in these cases are not described in Rule 62-773.650(1). As such, they are not "interest costs incurred" under Rule 62-773.200(12). (In contrast, the post-application interest the Department used to pay in the form of interest credits is described in Rule 62- 773.650(1)(c), and those payments were considered to be "interest costs incurred" under Rule 62-773.200(12).)
Based upon the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that the Department of Environmental Protection enter a final order:
granting Petitioners' claims for ECA's 15% markups, together with Petitioners' 15% markups on ECA's markups, as follows:
Petitioner DOAH Case Amount
Cloyd Toney 98-2021 $8,120.80
James Scelfo 98-4534 $6,495.29
Cohen/Grosby 98-4537 $5,302.33
Cohen/Roth 98-4538 $10,303.12
Cloyd Toney 98-4540 $9,293.40
Luella Ceasar 98-4541 $4,231.91
Peter Kliest 98-4543 $13,446.66
requiring recovery of overpayments of interest paid from ECA to Petitioners, plus ECA's 15% markups on the interest payments, plus Petitioners' 15% markups on ECA's markups, as follows:
ECA's Interest Overpayments
Petitioner | DOAH Case | Interest Amount |
Cloyd Toney | 98-2021 | $6,282.52 |
James Scelfo | 98-4534 | $6,670.50 |
Cohen/Grosby | 98-4537 | $4,030.68 |
Cohen/Roth | 98-4538 | $7,783.00 |
Cloyd Toney | 98-4540 | $7,160.79 |
Luella Ceasar | 98-4541 | $4,135.42 |
Peter Kliest | 98-4543 | $8,469.25 |
ECA's Markups on ECA's Interest
Cloyd Toney | 98-2021 | $942.38 |
James Scelfo | 98-4534 | $1,000.58 |
Cohen/Grosby | 98-4537 | $604.60 |
Cohen/Roth | 98-4538 | $1,167.45 |
Cloyd Toney | 98-4540 | $1,074.12 |
Luella Ceasar | 98-4541 | $620.31 |
Peter Kliest | 98-4543 | $1,270.39 |
Petitioners' Markups on ECA's Markups on ECA's Interest
Cloyd Toney | 98-2021 | $141.36 |
James Scelfo | 98-4534 | $150.09 |
Cohen/Grosby | 98-4537 | $90.69 |
Cohen/Roth | 98-4538 | $175.12 |
Cloyd Toney | 98-4540 | $161.12 |
Luella Ceasar | 98-4541 | $93.05 |
Peter Kliest | 98-4543 | $190.56 |
requiring recovery of the $561.49 overpayment on the Ceasar reimbursement application (Case No. 98-4541) reflected in Finding 61, supra.
DONE AND ENTERED this 16th day of December, 1999, in Tallahassee, Leon County, Florida.
J. LAWRENCE JOHNSTON Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 16th day of December, 1999.
COPIES FURNISHED:
J. A. Spejenkowski, Esquire
Department of Environmental Protection Douglas Building, Mail Station 35
3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000
Bradford C. Vassey, Esquire Environmental Corporation of America
205 South Hoover Street, Suite 101 Tampa, Florida 33609
Carter B. McCain, Esquire MacFarlane, Ferguson & McMullen
400 North Tampa Street, Suite 2300 Tampa, Florida 33601
Kathy Carter, Agency Clerk
Department of Environmental Protection Douglas Building, Mail Station 35
3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000
Teri Donaldson, General Counsel Department of Environmental Protection Douglas Building, Mail Station 35
3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
| Issue Date | Proceedings |
|---|---|
| Mar. 15, 2000 | Final Order filed. |
| Dec. 27, 1999 | Petitioners and Environmental Corporation of America, Inc. Exceptions to Recommended Order filed. |
| Dec. 16, 1999 | Recommended Order sent out. CASE CLOSED. Hearing held August 17-20, 1999. |
| Oct. 05, 1999 | Order Denying Enlargement of Proposed Recommended Order sent out. |
| Oct. 04, 1999 | (Respondent) Proposed Recommended Final Order filed. |
| Sep. 30, 1999 | (B. Vassey) Amended Response to Motion to Exceed Limitations of Rule 28-106.215, Florida Administrative Code (filed via facsimile). |
| Sep. 29, 1999 | Petitioner`s Response to Motion to Exceed Limitations of Rule 28-106.215, Florida Administrative Code (filed via facsimile). |
| Sep. 27, 1999 | (Respondent) Motion to Exceed Limitations of Rule 28-106.215, Florida Administrative Code filed. |
| Sep. 27, 1999 | Petitioner`s Recommended Final Order filed. |
| Sep. 15, 1999 | August 17, 1999 (Day 1) Transcript ; August 18, 1999 (Day 2) ; August 19, 1999 (Day 3) ; August 20, 1999 (Day 4) ; (4) Condensed Version; Index for (Day 1) ; (Day 2); (Day 4) 
 filed. |
| Sep. 07, 1999 | Petitioners` Response to Respondent`s Analysis of Chapter 99-379, CS/HB No. 107 (filed via facsimile). |
| Sep. 01, 1999 | 2 Boxes Exhibits filed. |
| Aug. 30, 1999 | Respondent`s Response to Petitioner`s Request for Official Recognition filed. |
| Aug. 17, 1999 | CASE STATUS: Hearing Held. |
| Aug. 12, 1999 | (Petitioner) Request for Official Recognition (filed via facsimile). |
| Aug. 10, 1999 | (Petitioner) Amended Pre-Hearing Stipulation (filed via facsimile). |
| Aug. 06, 1999 | (Petitioner) Response to Respondent`s Motion in Limine: Petitioner`s Proposed Hearing Exhibits and Testimony filed. |
| Aug. 06, 1999 | Petitioner`s Response to Respondent`s Response to Petitioner`s Motion to Intervene and Add Environmental Corporation of America as a Party and in the Alternative Motion to Strike and Request for a Formal Hearing filed. |
| Aug. 05, 1999 | Order on Motion to Intervene and Amend Petitions sent out. (Environmental Corporation of America is granted party status to the extent that leave is granted to ECA to Intervene and participate as a party to these proceedings) |
| Aug. 02, 1999 | Respondent`s Pre-Trial Stipulation; Motion in Limine: Petitioners Proposed Hearing Exhibits and Testimony filed. |
| Aug. 02, 1999 | Letter to J. Spejenkowski from B. Vassey Re: Prehearing Stipulation filed. |
| Jul. 27, 1999 | Respondent`s Response to Petitioner`s "Motion to Intervene and Add Environmental Corporation of America as a Party" and in the Alternative Motion to Strike and Request for Formal Hearing filed. |
| Jul. 26, 1999 | (Respondent) Notice of Intent to Pursue Attorney Fees and Costs filed. |
| Jul. 22, 1999 | (B. Vassey) Response to Respondents Request for Admissions (Set 1) filed. |
| Jul. 21, 1999 | (ECA) Motion to Intervene and to Amend Petitions to Add Environmental Corporation of America as a Party filed. |
| Jun. 22, 1999 | (Respondent) Request for Admissions (Set 1); Clarification of Change in Agency Position Based on Actual Data filed. |
| Jun. 07, 1999 | Respondent`s Withdrawal of Motion to Compel Production of Documents and Motion for Sanctions and Attorney Fees (filed via facsimile). |
| Jun. 02, 1999 | (B. Vassey) Response to Motion to Compel Production of Documents and Motion for Sanctions and Attorney`s Fees filed. |
| Jun. 01, 1999 | (B. Vassey) Response to Motion to Compel Production of Documents and Motion for Sanctions and Attorney`s Fees (filed via facsimile). |
| May 28, 1999 | (Respondent) Notice of Hearing (6/8/99; 10:00 a.m.) filed. |
| May 28, 1999 | Respondent`s Motion to Compel Production of Documents and Motion for Sanctions and Attorney Fees filed. |
| May 24, 1999 | Department of Environmental Protection`s Notice of Service of Answers to Petitioner`s Second Set of Interrogatories filed. |
| May 24, 1999 | Order Continuing Final Hearing sent out. (hearing set for August 17 through 20, 1999; 9:00am; Tampa) |
| May 21, 1999 | (Petitioner) Amended Motion for Continuance (filed via facsimile). |
| May 20, 1999 | (Petitioner) Motion to Continue (filed via facsimile). |
| May 20, 1999 | Joint Stipulation of the Parties filed. |
| May 20, 1999 | (B. Vassey) Notice of Intent to Request Official Recognition of the Certain Statutes, Rule and Official Documents filed. |
| May 20, 1999 | (B. Vassey) List of Exhibits; List of Witnesses (filed via facsimile). |
| May 18, 1999 | Respondent`s Request for Official Recognition filed. |
| May 18, 1999 | Reconsideration of Order on Motion in Limine and Motion to Compel sent out. |
| May 18, 1999 | (B. Vassey) Motion to Withdraw Petition for Administrative Hearing (for case no. 98-4536) filed. |
| May 17, 1999 | (Respondent) Memorandum; Clarification of Agency`s Change of Position filed. |
| May 17, 1999 | (Respondent) Notice of Filing Transcript; Hearing on Pending Motions (Judge has original and copy of Transcript) filed. |
| May 17, 1999 | (B. Vassey) (3) Motion to Withdraw Petition for Administrative Hearing (for DOAH case nos. 98-2030, 98-4539, 98-4542) filed. |
| May 17, 1999 | (B. Vassey) Memorandum of Law Motion to Clarify Hearing filed. |
| May 13, 1999 | Memorandum of Law Motion to Clarify Hearing (filed via facsimile). |
| May 11, 1999 | (Respondent) Notice of Change of Agency Position filed. |
| May 10, 1999 | Order on Motion in Limine and Motion to Compel sent out. |
| May 06, 1999 | (Respondent) Notice of Hearing (5/7/99; 10:00 a.m.) (filed via facsimile). |
| May 05, 1999 | Respondent`s Response to Petitioners` Motion in Limine filed. |
| May 05, 1999 | (Petitioner) Motion in Limine (filed via facsimile). |
| Apr. 29, 1999 | Department of Environmental Protection`s Notice of Filing Depositions Duces Tecum; Deposition of: Jack Ceccarelli ; Continued Deposition of Jack Ceccarelli (Judge has original and copy of Deposition) filed. |
| Apr. 29, 1999 | Respondent`s Notice of Authority w/exhibits filed. |
| Apr. 27, 1999 | Respondent`s Motion to Compel Production of Documents filed. |
| Apr. 22, 1999 | (Petitioner) Notice and Certificate of Service of Interrogatories; Plaintiff`s Second Set of Interrogatories filed. |
| Mar. 31, 1999 | (2) Department of Environmental Protection`s Amended Notice of Taking Depositions filed. |
| Mar. 25, 1999 | Notice of Final Hearing (Dates and Location) sent out. (hearing set for May 25-28, 1999, starting at 9:00am on 5/25/99; Tampa) |
| Mar. 23, 1999 | (2) Department of Environmental Protection`s Notice of Taking Depositions; Subpoena Duces Tecum (J. Spejenkowski) filed. |
| Mar. 19, 1999 | (Respondent) Notice of Provisions Pursuant to Rule 1.351(b) Florida Rules of Civil Procedure filed. |
| Feb. 26, 1999 | Order Continuing Final Hearing sent out. (3/9/99 hearing cancelled) |
| Feb. 25, 1999 | Department of Environmental Protection`s Notice of Taking Depositions filed. |
| Feb. 25, 1999 | (Petitioner) Response to Respondent`s Motion for Continuance of Final Hearing (filed via facsimile). |
| Feb. 25, 1999 | Department of Environmental Protection`s Notice of Taking Depositions filed. |
| Feb. 22, 1999 | (C. McCain) Notice of Appearance filed. |
| Feb. 19, 1999 | Respondent`s Motion for Continuance of Final Hearing filed. |
| Feb. 18, 1999 | (B. Vassey) Motion to Withdraw; Order (for Judge Signature) rec`d |
| Feb. 10, 1999 | (B. Vassey) Motion for Protective Order rec`d |
| Jan. 11, 1999 | (4) Subpoena ad Testificandum (J. Spejenkowski); (2) Subpoena Duces Tecum; (6) Return of Service filed. |
| Jan. 08, 1999 | Response of Respondent, Department of Environmental Protection, to Petitioner`s Request for Production of Documents (Set I) filed. |
| Jan. 08, 1999 | (10) Response of Respondent, Department of Environmental Protection, to Petitioner`s Request for Production of Documents (Set 1) filed. |
| Jan. 08, 1999 | (6) Receipt of Service filed. |
| Dec. 23, 1998 | Notice of Final Hearing sent out. (hearing set for March 9-12, 1999; 9:00am; Tampa) |
| Dec. 23, 1998 | Prehearing Order sent out. |
| Dec. 23, 1998 | Order Consolidating Cases sent out. (Consolidated cases are: 98-2021, 98-2030, 98-4535, 98-4536, 98-4537, 98-4538, 98-4539, 98-4540, 98-4541, 98-4542 & 98-4543) |
| Dec. 11, 1998 | Order Severing Case Nos. 98-2021 and 98-2030 sent out. (Cases severed from consolidated group under 98-2018) |
| Dec. 04, 1998 | Department of Environmental Protection`s Notice of Service of Answers to Petitioner`s First Set of Interrogatories filed. |
| Nov. 25, 1998 | (DEP) Motion for Approval of Qualified Agency Representative filed. |
| Nov. 18, 1998 | (Respondent) Request for Production of Documents filed. |
| Nov. 09, 1998 | Answers to Interrogatories to Petitioner (Set 1) filed. |
| Nov. 09, 1998 | Answers to Interrogatories to Petitioner (Set 1) filed. |
| Oct. 29, 1998 | Plaintiff`s First Set of Interrogatories filed. |
| Oct. 29, 1998 | (Petitioner) Notice and Certificate of Service of Interrogatories filed. |
| Oct. 28, 1998 | (Petitioner) Motion for Venue in Tampa, Florida filed. |
| Sep. 21, 1998 | Order Deferring Status Reports sent out. (status report due by 12/15/98) |
| Sep. 15, 1998 | Joint Status Report filed. |
| Jun. 23, 1998 | Order Placing Cases in Abeyance sent out. (parties to file status report within 90 days) |
| Jun. 22, 1998 | Joint Motion to Abate filed. |
| May 29, 1998 | (Respondent) Notice of Intent to File Motion to Abate filed. |
| May 28, 1998 | Order Consolidating Cases sent out. (Consolidated cases are: 98-002018 98-002019 98-002020 98-002021 98-002022 98-002023 98-002024 98-002025 98-002026 98-002027 98-002028 98-002029 98-002030 . CONSOLIDATED CASE NO - CN002965 |
| May 26, 1998 | Respondent`s Response to Petitioner`s Motion to Consolidate filed. |
| May 20, 1998 | Joint Response to ALJ`s Initial Order filed. |
| May 18, 1998 | Notice of Related Case and Motion to Consolidate by Petitioner`s Agent, Environmental Corporation of America, Inc. (Cases requested to be consolidated: 98-2018, 98-2020 through 2030) filed. |
| May 18, 1998 | (From B. Vassey) Motion for Venue in Tampa, Florida filed. |
| May 06, 1998 | Initial Order issued. |
| May 01, 1998 | Petition for Administrative Hearing Pursuant To Section 120,57(1)(e), Florida Statutes; Agency Action Letter; Request for Assignment of Administrative Law Judge and Notice of Preservation of Record filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Mar. 14, 2000 | Agency Final Order | |
| Dec. 16, 1999 | Recommended Order | Petroleum Cleanup Reimbursement application; Department of Environmental Protection`s (DEP) denial of contractor markup. During proceeding, DEP sought recovery of reimbursement for interest payments. Grant contractor markup but recover interest payments. |
ENVIRONMENTAL TRUST (FINA-NORTHSIDE) vs DEPARTMENT OF ENVIRONMENTAL PROTECTION, 98-002021 (1998)
ENVIRONMENTAL TRUST (FINA-NORTHSIDE) vs DEPARTMENT OF ENVIRONMENTAL PROTECTION, 98-002021 (1998)
HUGHES SUPPLY, INC. vs DEPARTMENT OF ENVIRONMENTAL REGULATION, 98-002021 (1998)
CJC PROPERTIES LTD. vs DEPARTMENT OF ENVIRONMENTAL PROTECTION, 98-002021 (1998)
